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[2019] ZALCJHB 300
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Malatji v City of Tshwane Metropolitan Municipality and Others (JR654/17) [2019] ZALCJHB 300 (7 November 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR 654/17
In the matter between:
TSHEPO
ANDREW
MALATJI
Applicant
and
CITY
OF TSHWANE METROPOLITAN
MUNICIPALITY
First
Respondent
SIPHO
SEBASTIAN
NKOMO Second
Respondent
TSHIKANE
OWEN MTSETWENI
Third
Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL Fourth
Respondent
MABHOKO
MATHOLE
N.O Fifth
Respondent
Heard:
27 August 2019
Delivered:
7 November 2019
JUDGMENT
MAHOSI. J
Introduction
[1]
This is an application in terms of section 145 of the Labour
Relations Act
[1]
(LRA)
to review and set aside the arbitration award issued by the fifth
respondent (the arbitrator) under the auspices of the fourth
respondent (SALGBC), under case number PMD 081505, dated 10 January
2017 in terms of which the arbitrator dismissed the applicant’s
referral. [2] The applicant
seeks an order substituting the award with a finding that
he was
unfairly denied a promotion and/or appointment and that the first
respondent be ordered to promote him to a position equivalent
to
Director: Road Policing from 1 May 2013 with all financial benefits.
In the alternative, the applicant seeks an order remitting
this
matter back to the SALGBC
to
be heard
de
novo
by an arbitrator other than the fifth respondent.
[3]
The key question is whether the arbitrator’s decision is one
that a reasonable
decision-maker could not reach.
Background
[4]
Prior to outlining the applicant’s case in detail and
considering the issues
that gave rise to the claim, it is necessary
to outline the facts that form the relevant background to the dispute
between the
parties.
[5]
On 8 February 2013, the Municipality advertised various positions
within its Metropolitan
Police Department thereby inviting interested
parties to apply for such positions. The applicant applied for 8
Director positions
and one of the positions that he applied for was
that of Director: Road Policing (Operational Position). However, the
Municipality
did not shortlist him.
[6]
Aggrieved by the decision not to shortlist him, the applicant
referred an unfair labour
practice dispute to the SALGBC for
conciliation which was held on 29 November 2013. However, the dispute
could not be resolved
through conciliation and as a result, the
certificate of non-resolution was issued. The matter was then
referred for arbitration
that was heard from 18 August 2015 and
finalized on 25 November 2016.
[7]
The issue that the arbitrator had to decide was whether the
Municipality acted unfairly
by not promoting the applicant and the
third respondent (Mr Mtsetweni), who was the second applicant in the
arbitration proceedings.
In his award, the arbitrator found that the
applicant failed to show that he was entitled to be shortlisted by
the Municipality
and that such failure amounted to unfair labour
practice. The arbitrator further found that the Municipality
committed an unfair
labour practice against Mr Mtsetweni.
[8]
On the basis of his finding, the arbitrator dismissed the applicant’s
claim
and ordered the Municipality to appoint the third respondent to
a position equivalent of a Director: Road Policing from 1 May 2013
with all financial benefits. It is this award that is the subject
matter of this application.
Grounds for review
[9]
The applicant contends that the arbitrator committed a number of
gross irregularities
in the conduct of the proceedings, which
resulted in him arriving at the award that a reasonable decision
maker would not have
arrived. The basis for the applicant’s
contention is that the arbitrator:
9.1
Misconstrued the nature of the dispute and the evidence before him.
9.2
Failed to consider the severity of the non-compliance with the
Municipality’s own
policies and procedures, which rendered the
whole recruitment process null and void.
9.3
Exceeded his powers as an arbitrator in appointing Mr Mtseweni in the
position in question.
9.4
Made a finding to allow introduction of
documentary evidence during
cross-examination without giving reasons.
9.5
Failed to direct the process properly in
respect of cross-examination and re-examination.
The Municipality’
submissions
[10]
The Municipality contends that when regard is had to the applicant’s
founding papers and
the record of the attrition proceedings which is
sought to be reviewed and set aside, there is no factual and legal
basis to conclude
that the arbitrator’s conclusion is
unreasonable and that the arbitrator committed irregularities in the
arbitration proceedings
to justify the reviewing and setting aside of
the award.
[11]
It is the Municipality’s further contention that the reason why
the applicant was not successful
in his application for the position
was that he did not satisfy the requirements to be appointed to the
position.
The test for review
and evaluation
[12]
The test laid down in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2]
is
a test for the substantive reasonableness of the outcome or result of
an arbitration award, which is an outcome based enquiry
[3]
,
entailing a stringent test aimed at ensuring that arbitration awards
are not lightly interfered with.
[4]
[13]
In
Bestel
v Astral Operations Ltd and Others
[5]
the
Court stated as follows:
‘
It is important
to emphasise,
as
is exemplified
from
Carephone
,
and in
Schwartz
,
supra,
that
the ultimate principle upon which a review is based is justification
for the decision as opposed to it being considered to
be correct by
the reviewing court; that is whatever this Court might consider to be
a better decision is irrelevant to review proceedings
as opposed to
an appeal. Thus, great care must be taken to ensure that this
distinction, however difficult it is to always maintain,
is
respected.’
[6]
[14]
In the current matter, the applicant is challenging the arbitrator’s
decision that he failed
to show that he was entitled to be
shortlisted and that the failure to shortlist him amounted to unfair
labour practice. For the
applicant to succeed with the review
application, it must be established that the arbitrator’s
decision fell outside the
bounds of reasonableness on all the
material that was before the arbitrator, including for the reasons
not considered by the arbitrator.
[7]
[15]
The unfair labour practice is defined in section 186(2)(a) of the LRA
as any act or omission
that arises between an employer and an
employee involving an unfair conduct by the employer relating to the
promotion, demotion,
probation or training of an employee or relating
to the provision of benefits to an employee.
It
is trite that a promotion for the purposes of section 186(2)(a)
involves a move by an existing employee to a higher rank or position
that carries greater status, responsibility and authority.
[8]
[16]
The
onus
to establish the existence of a decision that constitutes an unfair
labour practice as provided in section 186(2) rests on the
employee.
[9]
An
employee
may
challenge his/her failure to be promoted with reference to the
procedure adopted in appointing the successful candidate and
the
reasons for failing to promote him/her. In the current matter, the
applicant challenged the Municipality’s decision not
to promote
him on the basis that he was not shortlisted and interviewed for the
position that he had applied for. In
Department
of Justice v Commission for Conciliation, Mediation and Arbitration
and Others
[10]
(
Department
of Justice),
the
Labour Appeal Court (LAC) stated that:
‘
....
An employee who complains that the employer's decision or conduct in
not appointing him constitutes an unfair labour practice
must first
establish the existence of such decision or conduct. If that decision
or conduct is not established, that is the end
of the matter. If that
decision or conduct is proved, the enquiry into whether the conduct
was unfair can then follow. This is
not one of those cases such as
disputes relating to unfair discrimination and disputes relating to
freedom of association where
if the employee proves the conduct
complained of, the legislation then requires the employer to prove
that such conduct was fair
or lawful and, if he cannot prove that,
unfairness is established. In cases where that is intended to be the
case, legislation
has said so clearly. In respect of item 2(1)(b)
matters, the Act does not say so because it was not intended to be
so.’ [Footnote
omitted]
[17]
In
Monyakeni
v SSSBC and Others,
[11]
the
LAC stated as follows:
‘
There
are two components to a complaint regarding a failure to promote an
employee as an unfair labour practice. The one relates
to the
procedure followed by the employer. The other relates to the
substantive merits and it concerns the suitability of the candidate
for promotion to the post in question.’
[18]
To succeed, the applicant has to establish the existence of a conduct
or decision on the part
of the Municipality. It is common cause that
the applicant applied for the position that was advertised. The
question is whether
the Municipality’s conduct or decision not
to shortlist and appoint him is one that falls within the definition
of unfair
labour practice.
[19]
The applicant has to show that the he has been overlooked for
promotion although he possesses
qualifications or experience that the
successful candidate does not have and that the Municipality cannot
explain why he was overlooked.
If the said conduct or decision is
proven, the enquiry whether the conduct was unfair can then follow.
If it is found that the
conduct was fair, that is the end of the
matter.
[20]
The advertisement required that the applicants satisfy the following
requirements (a) possess
an appropriate tertiary-related
qualification in the relevant field or discipline or equivalent
qualification; (b)
be
appointed as Metro police officer, police officer or traffic officer;
(c) have a minimum of eight (8) years applicable experience
in
policing at senior management level; (d) not have previous criminal
convictions (excluding previous convictions relating to
political
activities in the previous dispensation) and such a person shall
allow his/her fingerprints to be taken, or has been
waived by the
relevant authority; (e) have advanced computer skills and (f) a valid
Code B driver's license.
[21]
The applicant’s contention is that the arbitrator misconstrued
the nature of the dispute
and the evidence before him in that his
finding that “
the applicant failed to show that he was
entitled to be shortlisted”
was in direct contradiction
with paragraph 5.3 of the award, which reads:
‘
The
first applicant argued that he applied for the position, met the
requirements but was not shortlisted. The first respondent
appointed the second respondent who did not meet the requirements.
There was no evidence brought by the respondents to oppose
the
evidence of the first applicant meaning that it stands to be
accepted’
[22]
In opposing, the Municipality contents that the applicant does not
have a tertiary-related qualification
in policing or any equivalent
qualification.
The Municipality further
contents that, although it employed the applicant in a senior
position from May 2005, he still did not
have a minimum of eight (8)
years applicable experience in policing as required.
[23]
The applicant took issue with the Municipality’s submission
that he did not meet the minimum
requirements on the basis that it
was not an argument before the arbitrator. According to the
applicant’, the Municipality’s
argument was simply that
he did not have a right to be selected for an interview from the pool
of candidates who all qualified
for the position.
[24]
As aforesaid, the question is whether
the
arbitrator’s decision fell outside the bounds of reasonableness
on all the material that was before him, including for
the reasons
not considered by the arbitrator.
[12]
It
is common cause that the applicant was not shortlisted and
interviewed. The next question is whether the Municipality’s
conduct was unfair.
[25]
In his award,
the arbitrator recorded that
the applicant “
passed matric,
primary teachers diploma, BA degree, traffic diploma and a registered
traffic officer.”
To an extent
that the applicant does not dispute that which is recorded by the
arbitrator to be his qualifications, this application
must be
determined on the basis that these are the qualifications that the
arbitrator considered before arriving at the conclusion
that he
reached.
[26]
Considering the requirements outlined in the advertisement for the
position and the applicant’s
qualifications, it is apparent
that the applicant did not establish that he was entitled to be
shortlisted and to be appointed
for the position as he failed to show
that he possessed a tertiary-related qualification in policing and
had the minimum of eight
(8) years applicable experience in policing
at senior management level. It follows that the Municipality’s
conduct was not
unfair. There is therefore, no merit to the
applicant’s contention that the arbitrator
misconstrued
the nature of the dispute and the evidence before him.
[27]
Without the applicant having produced evidence that he satisfied the
requirement to be shortlisted
and appointed for the position at the
arbitration, his remaining grounds of review are of no consequence.
It is my view that the
arbitrator’s decision is one that a
reasonable decision-maker could reach. Considering the test for
review and case law cited
herein above, the applicant has failed to
pass the threshold to have the award reviewed and set aside and his
application falls
to be dismissed.
Costs
[28]
With regard to
costs, I am of the opinion
that the requirements of law and fairness dictate that there should
be no order as to costs.
[29]
In the circumstances, the following order is made:
Order
1.
The application for an order to review and set aside the arbitration
award issued
by the by the fifth respondent under the auspices of the
fourth respondent under case number PMD 081505, dated 10 January 2017
is dismissed.
2.
There is no order as to costs.
__________________
D.
Mahosi
Judge
of the Labour Court of South Africa
Appearances
:
For
the applicant:
Advocate Ernest Richter
Instructed
by:
Oliver,
Cronje, Stighlingh Attorneys
For
the respondent:
Advocate Kennedy Tsatsawane
Instructed
by:
Gildenhuys Malatji Incorporated Attorneys
[1]
Act
66 of 1995 as amended.
[2]
[2007]
12 BLLR 1097 (CC).
[3]
Ellerine
Holdings Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2008) 29
ILJ
2899
(LAC) at 2906H-I.
[4]
Fidelity
Cash Management Services v CCMA and Others
[2008]
3 BLLR 197
(LAC) at para 100;
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curiae)
[2013] 11 BLLR 1074
(SCA) at para 13.
[5]
[2011]
2 BLLR 129
(LAC)
[6]
Id
fn 5 at para 18.
[7]
Fidelity
Cash Management Services v CCMA and Others
[2008]
3 BLLR 197
(LAC) at para 103.
[8]
Department
of Justice v CCMA and Others
[2004] 4 BLLR 297
(LAC); (2004) 25 ILJ 248 (LAC) at 315.
[9]
See
City
of Cape Town v SA Municipal Workers Union on behalf of Sylvester and
Others
(2013) 34 ILJ 1156 (LC) at para 19.
[10]
(2004)
25 ILJ 248 (LAC) at para 73.
[11]
ZALAC 17 (19 May 2015) at para 20.
[12]
Fidelity
Cash Management Services v CCMA and Others
[2008]
3 BLLR 197
(LAC) at para 103.